Subject: Regional or Field Solicitor’s Office (Solicitor) Review of Bureau of Land Management (BLM) Land Exchange Proposals

Program Area: Lands and Realty, Exchange of Public Lands

Purpose: This Instruction Memorandum (IM) clarifies the requirement for the BLM to request Solicitor review of land exchange proposals.

Policy/Action: You must request documentation from the Solicitor to verify that land exchange feasibility and decision packages have been thoroughly reviewed and that the land exchange, as proposed, meets all statutory, regulatory, and policy requirements. It is important that the request for Solicitor review highlights any items requiring special attention. Some examples of items that must be highlighted include:

Title or boundary issues are unclear, may conflict with future management or the title evidence does not conform to the 2001 Department of Justice Title Standards[1].

Reservations or deed restrictions on the Federal land to be conveyed.

Split estate, third party mineral interests, and reserved rights.

Hazardous material contamination.

Significant water rights value or other important resource considerations1.

State land exchanges where a Certificate of Title is being issued by the State as evidence of title1.

Exchanges where the Federal land is under the jurisdiction of the BLM and the non-Federal land would be acquired to benefit another Federal agency other than the National

Park Service, U.S. Fish and Wildlife Service, or the U.S. Forest Service {See FLPMA 102 a (10), 205(b), 205(c) and 206(c)}.

Legislation which may, subject to interpretation, provide exemptions from the standard administrative land exchange process, and any other situation which calls for legal advice.

Decision packages submitted to the Washington Office which do not include documentation of Solicitor review and concurrence will not be formally processed until such documentation is provided.

Timeframe: Effective upon issuance.

Background: On October 23, 2000, the Department of the Interior Solicitor signed a memorandum titled “Assistance Related to Improving Guidance and Oversight of the Land Exchange Program of the BLM”. The memorandum (attached) provided the following guidance: “An attorney in the appropriate field or regional office should review each feasibility report for adequacy before it is submitted to the National Land Exchange Team (NET). Further, our attorneys should work with the Bureau to see that each land exchange meets the requirements set out in the Handbook, and should review the administrative record to make sure there is adequate documentation supporting the exchange.”

Additionally, On October 1, 2003, the Director of the BLM signed a memorandum titled “Recommendations for Improvements to the BLM’s Land Exchange Program” to the Assistant Secretary, Land and Minerals Management. Recommendation 6-8 contained in that memorandum states as follows: “Work with the Office of the Solicitor to strengthen the legal review role of the Regional and Field solicitors in conducting legal reviews of land exchange proposals to ensure all land exchanges are processed consistent with laws, regulations, policies and guidance.” This recommendation was addressed by including specific direction on Solicitor involvement in the land exchange review process in the BLM’s August 2005 Land Exchange Handbook.

Under the current review process, the BLM requests Solicitor review at the feasibility stage and at the decision stage in order to strengthen management oversight and to ensure adequate controls are in place for land exchange decisions. In some cases, issues requiring advice from legal counsel will be unknown at the feasibility stage and only discovered during resource analysis and environmental documentation. Review by the Solicitor at the decision stage allows for legal analysis of issues discovered between feasibility approval and decision review.

Field Offices have primary responsibility for preparing initial feasibility and decision review documents for all land exchange proposals recommended for processing. Review documents are to be prepared in a manner that is fully compliant with the policy and guidance outlined in the Land Exchange Handbook, H-2200-1, and other applicable guidance and policy.

State Offices have quality assurance responsibilities for land exchange processing, including coordination with the Solicitor on review and concurrence. Land exchange proposals which would benefit the U.S. Forest Service may require review by the United States Department of Agriculture’s Office of General Counsel.

The NET is coordinating with the Office of the Solicitor and BLM’s National Training Center on training for Solicitors to facilitate the implementation of this IM.

State Offices should ensure that your counterparts at the Solicitor’s office are aware that the BLM Land Exchange Handbook is available online at http://www.blm.gov/nhp/efoia/wo/handbook/h2200-1.pdf. Paper copies of the Handbook are available from the BLM Printed Materials Distribution Center by calling 303-236-1975.

[1] Agency (Solicitor) delegation of authority to review and approve title is limited to $100,000, or less, when the title evidence is an abstract, involves water rights, a State Certificate of Title or any other type of title evidence other than the acceptable title evidence standards established by Department of Justice Title Standards 2001